An unequivocal exemption letter from the Pharmacy and Poisons Board created a legitimate expectation with respect to professional qualifications for registration as pharmacists

Republic v Pharmacy and Poisons Board and 2 others Ex parte Juliet Lihemo Agufa
Judicial Review Case No. 436 of 2014
High Court at Nairobi
Judicial Review Division
W Korir, J
August 18, 2015
Reported by Beryl A Ikamari and Robai Nasike Sivikhe
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Brief facts:
In 2009, the ex parte applicant joined Mt Kenya University for a five year course which culminated in the award of a Bachelor of Pharmacy degree. The university's admission criterion for the degree was that candidates should have obtained a mean grade of C+ in the Kenya Certificate of Secondary Education (KCSE). In 2013, the Pharmacy and Poisons Board wrote to the university informing them of guidelines for admission into pharmacy courses.
The university found that 39 of its students had not met the requirements under the guidelines on admission and wrote to the Board requesting for exemptions for those 39 students. In response, the Board granted exemptions to students who were enrolled at the university before the Board communicated the admission criteria to the Ministry of Education. The exempted students were students admitted on or before May 2011. The ex parte applicant was among the students to whom the exemption was applicable.
The ex parte applicant was awarded the Bachelor of Pharmacy degree in December 2013 and sat for the Board's professional examinations in March 2014. However, the Board withheld her results and informed her that she had not met the minimum entry requirements and criteria for registration as per the guidelines set by the Pharmacy and Poisons Board.
The ex parte applicant went to court alleging that her legitimate expectations arising from the exemption had been violated and that she had been denied an opportunity to be heard, as per the rules of natural justice, when the decision to withhold her results was made. She sought orders for the quashing of the Board's decision and for eventual registration as a pharmacist upon her satisfactory completion of the requisite internship.
The Board's claim was that according to the guidelines for Evaluation and Assessment for Enrolment as a Pharmacist (2007), for one to qualify as a pharmacist, he/she must have attained an average cluster weight of B- in the cluster subjects, provided that no subject in the cluster shall have a grade below C+. At the time of her enrollment at university, according to the Board, the ex parte applicant had not met the applicable criteria.

Issue:
  1. Whether an unequivocal exemption letter from the Pharmacy and Poisons Board created a legitimate expectation with respect to professional qualifications for registration as pharmacists
Judicial Review- certiorari and mandamus- doctrine of legitimate expectation-grant of judicial review orders based on grounds of legitimate expectation- whether the ex parte applicant met the set conditions for the application of the doctrine of legitimate expectation-whether the exemption by the respondent applied to the ex parte applicant- whether excluding the applicant from internship and subsequent registration as a pharmacist by the 1st respondent went against her legitimate expectations.

Held:
  1. A person seeking to rely on legitimate expectation had to demonstrate that;
  1. The representation underlying the expectation was clear, unambiguous and devoid of relevant qualification;
  2. The expectation was reasonable;
  3. The representation was made by the decision-maker; and
  4. The decision-maker had the competence and legal backing for making such representation.
  1. The Pharmacy and Poisons Board through a letter made an express promise to the university, and by extension the ex parte applicant, that students admitted on or before May 2011 would be granted an exemption. The rationale behind the exemption was that the students had been admitted by the university before the applicable admission criteria was communicated to the Ministry of Education.
  2. The promise was unequivocal and unqualified. The letter did not place any conditions on the exemption. An attempt by the 1st respondent to place conditions on the exemption was an afterthought and such an act could not be entertained by a court of justice.
  3. The Board could not withdraw the right granted to the ex parte applicant without giving her a chance to make her observations. The decision to withhold the ex parte applicant’s examination results was a breach of the doctrine of legitimate expectation. The doctrine created the requirement that a promise made by a public authority could not be withdrawn without giving the affected person a chance to comment on the decision.
  4. The ex parte applicant demonstrated that an unequivocal and unqualified promise was made to her and it exempted her from the requirements in the guidelines which concerned evaluation and assessment for registration as a pharmacist. Hence, all requirements for the grant of Judicial Review orders on grounds of legitimate expectation had been met.
  5. The letter which communicated the exemption stated that the Board had considered the request for exemption and had granted it. That was sufficient evidence that the board deliberated on the matter and decided that an exemption was merited.
  6. There was no allegation by the 1st respondent that the decision to exempt the ex parte applicant went against the law. Hence the promise to the ex parte applicant was legitimate and lawful.
  7. Shortcomings on the part of the ex parte applicant would be exposed during evaluation and assessment by the Board. However, the ex parte applicant was entitled to benefit from the representations made to her by the 1st Respondent. The 1st respondent could not renege on its word because doing so would render it unaccountable for its decisions. The principle of legitimate expectation was a tool for holding public bodies accountable for their actions.
Order of certiorari removing and quashing the 1st Respondent’s letter dated May 19, 2014 was issued.
Order of mandamus compelling the 1st respondent to issue the requisite authorization to enable the ex parte applicant proceed for internship and upon satisfactory completion be registered as a pharmacist was granted.
The 1st Respondent was to meet the ex-parte Applicant’s costs for the proceedings.


Kenya Law
Case Updates Issue 034/2015
Case Summaries

LAND LAW Procedural requirements to be followed before a chargee can exercise its power of statutory sale

Yusuf Abdi Ali Co Ltd v Family Bank Limited
Civil Case No. 405 of 2014
Commercial & Admiralty Division at Nairobi
September 22, 2015
J Kamau
Reported by Teddy Musiga & Daniel Hadoto

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Brief Facts:
The Plaintiff instituted the instant application seeking temporary injunction to restrain the defendant (the chargee) from selling, auctioning or otherwise disposing the plaintiff’s motor vehicles pending the hearing and determination of the full suit. The Plaintiff argued that the statutory notice of sale issued to him by the defendant (Chargee) was a nullity for being defective, for failure to detail the amount the Plaintiff had to pay to rectify the default as required by section 90(2) of the Land Act. He also sought a declaration that the 45 days Auctioneers Notice to sell issued to him was a nullity as the defendant had not served him a 40 days’ notice to sell as required by section 96(2) of the Land Act.

Issues:

  1. What is the procedure to be followed before a chargee exercises its statutory power of sale as regards the issuance of statutory notices?
  2. Whether a statutory notice under section 96(2) of the Land Act and Notification of Sale under Rule 15 (d) of the Auctioneers Rules, 1997 can be issued concurrently and/ or simultaneously.
  3. Whether the issuance of a Notice to sell under section 90 rather than section 96 of the Land Act was a procedural error that ought not to be a ground to restrain chargee from exercising its statutory power of sale

Land Law – Mortgages & Charges - redemption of mortgages & charges - exercise of statutory power of sale - statutory notice of sale - form of such notice – procedure for issuing notices of sale – whether a statutory notice under section 96(2) of the Land Act and Notification of Sale under Rule 15 (d) of the Auctioneers Rules, 1997 can be issued concurrently and/ or simultaneously - whether the concurrent or simultaneous issue of the statutory notice under section 96(2) of the Land Act and Notification of Sale under Rule 15(d) of the Auctioneer Rules infringes on the chargor’s equity of redemption - whether the notice to redeem issued under rule 15(d) of the Auctioneers Rules could serve as a notice to sell under the Land Act - Land Act section 96(2); Auctioneer Rules, Rule 15 (d) – Land Act, section 90 (2)and 96(2); Auctioneers Rules, Rule 10, 15(d)

Civil Practice and Procedure - injunction- interlocutory injunction -application by applicant to restrain the respondents from selling the plaintiff’s motor vehicles for failure to repay a debt to the defendant -where the motor vehicles were charged to the defendants- where the applicants defaulted on payment - applicable principles for grant of temporary injunction - whether the applicant established a prima facie case with a probability of success. Read More...

Section 90 of the Land Act Cap 280 (Laws of Kenya)

1. If a chargor is in default of any obligation, fails to pay interest or any other periodic payment or any part thereof due under any charge or in the performance or observation of any covenant, express or implied, in any charge, and continues to be default for one month, the chargee may serve on the chargor a notice, in writing, to pay the money owing or to perform and observe the agreement as the case may be.
2. The notice required by subsection (1) shall adequately inform the recipient of the following matters—
a. The nature and extent of the default by the chargor;
b. if the default consists of the non-payment of any money due under the charge, the amount that must be paid to rectify the default and the time, being not less than three months, by the end of which the payment in default must have been completed;
c. if the default consists of the failure to perform or observe any covenant, express or implied, in the charge, the thing the chargor must do or desist from doing so at to rectify the default and the time, not being less than two months, by the end of which the default must have been rectified;
d. the consequence if the default is not rectified within the time specified in the notice, the chargee will proceed to exercise any of the remedies referred to in this section in accordance with the procedures provided for in this sub-part; and
e. the right of the chargor in respect of certain remedies to apply to the court for relief against those remedies.

Section 96 of the Land Act

1. Where a chargor is in default of the obligations under a charge and remains in default at the expiry of the time provided for the rectification of that default in the notice served on the chargor under section 90 (1), a chargee may exercise the power to sell the charged land.
2. Before exercising the power to sell the charged land, the chargee shall serve on the chargor a notice to sell in the prescribed form and shall not proceed to complete any contract for the sale of the charged land until at least forty days have elapsed from the date of the service of that notice to sell.

Held:

  1. Reading the statutory notice by the defendant to the plaintiff against the provisions of section 90 of the Land Act; the statutory notice did indicate the nature and extent of default, it did not indicate the amount the plaintiff was required to pay to rectify the default and it did not also include the notification that the defendant would proceed to exercise any of the remedies referred to in the said section in accordance with the procedures provided for in that sub-part. The said notice only referred to the aspect of the right of a chargor in respect of certain remedies to apply to the court for relief against those remedies.
  2. The failure by the Defendant to issue the Notice that strictly complied with the provisions of Section 90 (2) of the Land Act rendered the said Statutory Notice of 16th May, 2014 defective and null and void ab initio. Any subsequent notices that were issued pursuant to the to the defendant’s exercise of its statutory power of sale were therefore invalid and could not confer any right on the Defendant to proceed as such. Therefore, on that ground alone, the purported sale of the subject property had no legal basis.
  3. Article 159 (2) (d) of the Constitution of Kenya, 2010 mandated courts to administer justice without undue regard to procedural technicalities. Thus the court opted to assume that the indication of section 90 as opposed to section 96 of the Land Act on the statutory notice dated 27th August 2014 was a typographical error purely to enable it decide the defendant’s arguments.
  4. Under the provisions of section 96 (1) and (2) of the Land Act, the defendant (chargee) was not expected to proceed to complete any contract for the sale of the charged land until forty (40) days had elapsed from the date of the notice to sell in the prescribed form which was not the case in the instant matter.
  5. The forty (40) days requirement under section 96 (1) of the Land Act was in addition to the three (3) months’ notice and different from the Notification of Sale that to be issued by an auctioneer.
  6. Issuing a Statutory Notice under Section 96(2) of the Land Act and Rule 15(d) of the Auctioneers Rule, 1997 concurrently and/or simultaneously was a fetter and clog to a chargor’s right of redemption.
  7. Where a chargor was is in default of the obligations under a charge and remained in default at the expiry of the time provided for the rectification of that default in the notice served on the chargor under Section 90 of the Land Act, a chargee would exercise the power to sell the charged land but the chargee would not proceed to complete any contract for the sale of the charged land until at least forty (40) days had elapsed from the date of the service of that notice to sell.
  8. In the Notice under Section 96(2) of the Land Act, the chargee was merely giving a notice to sell. Until the notice to sell in the prescribed form was gazette as envisaged in Section 96(2) of the Land Act, the court believed that such a notice was merely an indication of what a chargee intended to do. A chargor could redeem his property by paying on the fortieth (40th) day.
  9. A chargee would not know at the beginning of the issuance of its notice under Section 96(2) of the Land Act that a chargor would default at the end of the said notice and thus instruct auctioneers to prepare for the sale of charged property at the time it was indicating its intention.
  10. It was hardly equitable for a chargee to have instructed an auctioneer to advertise the property for sale before a chargor had had full opportunity to pay. An auctioneer would essentially be in the position of a football player who was in an off side position and caught the chargor by surprise as he would be waiting in the wings and hoping the chargor did not pay the outstanding sum so that he could sell the property.
  11. If the two (2) notices were to be issued concurrently, a chargor would not be certain whether or not he should redeem his property by paying the outstanding sums on that fortieth (40th) day of the Notice under Section 96(2) of the Land Act or the forty fifth (45th) day when the notice given by the auctioneer would be expiring.
  12. The issuance of the two (2) notices simultaneously would also unnecessarily cause undue anxiety to a chargor as he would be expected to pay the auctioneers charges, the auctioneers having been instructed and having taken action even if he would have redeemed his property on or before the (40th) as aforesaid.
  13. A chargor could pay a particular amount of money in the course of the forty (40) days’ notice which would effectively mean that the amount in the Notification of Sale would be different.
  14. The certainty of the amount in the Notification of Sale was paramount as a chargor had the right to redeem his property before the fall of the hammer in a public auction as well have the certainty of being not locked out of the public auction in the event he did not redeem his property on the fortieth (40th) of the Notice under Section 96(2) of the Land Act.
  15. The dominant purpose of the Land Act was to give a chargor all reasonable opportunity, within the confines of the law to redeem his property as Article 40 of the Constitution of Kenya, 2010 provided that parliament could not enact law that arbitrarily deprived a person of property or limits or in any way restricts the enjoyment of any right under this Article. The court had to balance that against the interests of a chargor who could also not be restricted from exercising its statutory power of sale.
  16. A Notification of Sale that was issued before the lapse of the forty (40) days’ notice raised legal challenges hence the Notification of Sale by the auctioneers ought to be have been issued after the lapse of the forty (40) days’ notice under Section 96(2) of the Land Act and not before that.
  17. Under section 97 of the Land Act, a chargee was expected to exercise a duty of care towards a chargor, failing which it would be liable for breach of duty of care. Rule 11 (b) (x) provided that a chargee could not rely on a valuation report that was more than twelve (12) months old. The defendant did not provide any evidence to demonstrate that it had obtained a Valuation Report that was not more than 12 months prior to the purported sale of the subject property. The valuation reports presented before court showed that it was dated 20th September, 2013 while the sale by public auction was scheduled for 29th October, 2014. Therefore, the defendant could not purport to sell the subject property when the prevailing circumstances were clearly unlawful.
  18. Having admitted to being indebted to the defendant, the plaintiff had clearly not made a prima facie case with a probability of success at trial. The question of the plaintiff suffering loss that could not be compensated by way of damages if the interlocutory judgment was not granted could not arise. The balance of convenience could not tilt in its favor as the invalid statutory notices could be regularized by the defendant issuing fresh notices that strictly complied with the provisions of the law.
  19. In view of the aforesaid indebtedness, the court was not inclined to grant an injunction to restrain the defendant from realizing the subject motor vehicles as its securities. Indeed, the Plaintiff admitted that when it was issued with a demand letter to clear the arrears of Kshs. 3,046,560.26, it only paid a sum of Kshs. 2,240,000/=. However, the defendant was reminded of the provision of Rule 10 of the Auctioneers Rules that a debtor could at any time before the property seized or repossessed was sold, apply to court for an order that the property be valued by an independent valuer.
  20. On the whole, the balance of convenience tilted in favor of the defendant for the reason that the court could not re-write the contract between the parties by restraining it from exercising its rights as a chargee. Thus, the defendant was at liberty to exercise the statutory power of sale or sell the subject motor vehicles provided that it fully complied with the strict provisions of the law.

Application dismissed.
Each party shall bear its own costs of this present application.
The status quo order issued on 13th October 2014 and extended several times thereafter was hereby vacated, lifted and/or set aside.

CONSTITUTIONAL LAW High Court has no Jurisdiction to suspend the implementation of the Supreme Court’s advisory opinion

Okiya Omtatah Okoiti & another v Attorney General & 2 Others
High Court at Nairobi
Petition No 288 of 2015
W Korir J
August 17, 2015
Reported by Andrew Halonyere and Maxwell Maina

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Brief facts:
The petitioner brought a petition before the High Court seeking inter-alia a mandatory order setting aside the Supreme Court’s advisory opinion to the extent that its implementation required the Constitution to be amended.
The advisory opinion was to the effect that the legislation on implementation of the gender principle in elective office should be in place as at August 27, 2015.
The petitioners’ case was that the Constitution prescribed the composition of the National Assembly under article 97 and the Senate through article 98, and deliberately excluded the broad gender principle arguing that articles 97 and 98 had to be amended before applying the principle of gender representation in the National Assembly and the Senate.

Issues:

  1. Whether the High Court has jurisdiction to suspend the implementation of the Supreme Court’s advisory opinion.
  2. Whether the interpretation of the Constitution is the sole responsibility of the High Court.

Constitutional Law – jurisdiction – petition to suspend the implementation of The Supreme Courts advisory opinion – whether the High Court had jurisdiction.

Constitutional Law – interpretation of the Constitution - whether the interpretation of the Constitution is the sole responsibility of the High Court – Constitution of Kenya 2010 articles 97, 163, 165. Read More...

Constitution of Kenya 2010
Article 97
The National Assembly consists of—

(a) two hundred and ninety members each elected by the registered voters of single member constituencies;
(b) forty-seven women, each elected by the registered voters of the counties, each county constituting a single member constituency;
(c) twelve members nominated by parliamentary political parties according to their proportion of members of the National Assembly in accordance with Article 90, to represent special interests including the youth, persons with disabilities and workers; and
(d) the Speaker, who is an ex officio member.

(2) Nothing in this Article shall be construed as excluding any person from contesting an election under clause (1) (a).

Article 163
(1) There is established the Supreme Court, which shall

(a) the Chief Justice, who shall be the president of the court;
(b) the Deputy Chief Justice, who shall—
(i)deputise for the Chief Justice; and
(ii)be the vice-president of the court; and
(c) five other judges.

(2) The Supreme Court shall be properly constituted for the purposes of its proceedings if it is composed of five judges.
(3) The Supreme Court shall have—

(a) exclusive original jurisdiction to hear and determine disputes relating to the elections to the office of President arising under Article 140; and
(b) subject to clause (4) and (5), appellate jurisdiction to hear and determine appeals from—
(i) the Court of Appeal; and
(ii)any other court or tribunal as prescribed by national legislation.

(4) Appeals shall lie from the Court of Appeal to the Supreme Court—

(a) as of right in any case involving the interpretation or application of this Constitution; and
(b) in any other case in which the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved, subject to clause (5).

(5) A certification by the Court of Appeal under clause (4) (b) may be reviewed by the Supreme Court, and either affirmed, varied or overturned.
(6) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government with respect to any matter concerning county government.
(7) All courts, other than the Supreme Court, are bound by the decisions of the Supreme Court.
(8) The Supreme Court shall make rules for the exercise of its jurisdiction.
(9) An Act of Parliament may make further provision for the operation of the Supreme Court.

Held:

  1. Jurisdiction is everything, without it a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for continuation of proceedings pending other evidence. A court of law down tools in respect of a matter before it the moment it holds the opinion that it is without jurisdiction.
  2. The Supreme Court, while rendering advisory opinion, would almost invariably engage in the exercise of constitutional interpretation, and it was not precluded from such an exercise. It would not follow therefore, that the Supreme Court would decline a proper request for an advisory opinion, merely because rendering such opinion would entail constitutional interpretation. The basic requirement for an application for an opinion was that it should as contemplated by article 163(6) of the Constitution, be seeking to unravel a legal uncertainty in such a manner as to promote the rule of law and the public interest.
  3. The High Court had no jurisdiction whether original, appellate or supervisory over the matters that have had the insight of the Supreme Court or any other superior court. Article 165(6) of the Constitution is clear on that.
  4. Article 165(5)(a) of the Constitution prohibited the High Court from having jurisdiction in matters reserved for the exclusive jurisdiction of the Supreme Court. By virtue of article 163(6) of the Constitution, advisory jurisdiction fell in the province of the Supreme Court. Once the Supreme Court formed the opinion that the gender-equity question was a matter befitting determination through an advisory opinion, the power of the High Court to address that question was taken away. Any attempt by the High Court to circumvent the decision of the Supreme Court was an affront to the Constitution. The same reasoning applies to the decision of the High Court that ordered the respondent to comply with the advisory opinion of the Supreme Court within forty days. Any attempt to delve into the issues that were addressed in that judgment would go against article 165(6) of the Constitution.

Petition and notice of motion dismissed.

HEALTH LAW

The Law on administration and management of the estate of a mentally ill person

In re V M L
High Court at Nyeri
Petition No. 15 of 2014
Ngaa Jairus J.
May 29, 2015
Reported by Emma Kinya Mwobobia

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Brief facts:
The Petitioners were the sons of the subject, VML, who had suffered a minor stroke in the year 2011 and subsequently suffered a brain haemorrhage in the year 2012. Her condition had deteriorated since then and at the time of lodging the petition she was hospitalised. The consultant physician attending to VML at the hospital had certified her as suffering from Alzheimer’s disease which had incapacitated her ability to make rational judgments or decisions for her wellbeing; in the consultant’s opinion VML had suffered a mental disorder. The petitioners stated that VML and her only sibling, being joint proprietors of the petitioners’ family home had earlier on agreed to sell this property to the interested party at Kshs.1,050,000,000. However because of the subject’s illness and in particular, her mental disposition, she could not complete the transaction hence the petition for special permission for the High Court to complete the transaction. The petitioners stated that for as long as VML was alive she would remain under specialised care and treatment and they therefore intended to dispose of VML’s estate to cater for the expenses that would ordinarily come along with such care and treatment.

Issues:

  1. What was the procedure for the application of guardianship for the benefit of a mentally ill person?
  2. What were the powers, duties and procedure of a manager appointed in dealing with the estate of a mentally ill person?
  3. Rationale of the necessity to dispose of the property of a mentally ill person during his/her lifetime

Health Law - mental health – estate of a mentally ill person – management of the estate of a mentally ill person – requirement of a guardian and manager to oversee the management and disposal of the estate – power of the court to appoint a guardian and legal manager of the estate of a mentally ill person – power, duties and procedure of appointment of a manager of the estate of a mentally ill person - Mental Health Act section 26 Read More...

Mental Health Act
Section 26
Order for custody, management and guardianship

(1) The court may make orders—
(a) for the management of the estate of any person suffering from mental disorder; and
(b) for the guardianship of any person suffering from mental disorder by any near relative or by any other suitable person.
(2) Where there is no known relative or other suitable person, the court may order that the Public Trustee be appointed manager of the estate and guardian of
any such person.
(3) Where upon inquiry it is found that the person to whom the inquiry relates is suffering from mental disorder to such an extent as to be incapable of managing his affairs, but that he is capable of managing himself and is not dangerous to himself or to others or likely to act in a manner offensive to public decency, the court may make such orders as it may think fit for the management of the estate of such person, including proper provision for his maintenance and for the maintenance of such members of his family as are dependent upon him for maintenance, but need not, in such case, make any order as to the custody of the person suffering from mental disorder.

Held:

  1. It was apparent from the doctor’s report that VML was suffering from a mental disorder from which she was unlikely to recover. The law governing the custody of such patients such as VML, their guardianship and the management or disposal of their estates was the Mental Health Act where under section 26 it provided for the order of custody, management and guardianship.
  2. In the face of the evidence that VML was suffering from a mental disorder, a medical condition contemplated under section 26 of the Mental Health Act, she was incapable of managing her own affairs and due to the condition there was a likelihood that she could act in a manner that offended public decency. The Petitioners had therefore made out a case for their appointment as the guardians of VML and managers of her estate.
  3. The powers of a manager appointed under section 26 of the Mental Health Act in dealing with the property of a person who because of a mental disorder was incapable of managing his or her own affairs were provided for in section 27 of the Act which was to the effect that the manager so appointed could alienate or dispose of the estate through any of the prescribed means including selling it in the manner proposed by the petitioners but subject to a special authorisation from the court.
  4. Section 26 and section 29 of the Mental Health Act suggested that one of the reasons why it could be necessary to dispose of the property of a person suffering from a mental disorder was to apply the proceeds thereof for the maintenance of the patient. The petitioners wanted to dispose of the family property for the maintenance of VML and in view of the provisions the Act as read with section 28, their intentions were quite legitimate. As a matter of fact, VML herself was a party to the contract for sale of the property at the initial stages of the transaction and it was apparent that she had executed the agreement for sale.
  5. According to the evidence, the Petitioners’ quest to sell VML’s property for the specified purpose was consistent with the law and there was no reason why they would not be authorised to do so. However, the property was being sold for Kshs. 1,050,000,000 which sum was colossal by any standards. Although no evidence was proffered on the costs or expenses that the Petitioners have incurred or are likely to incur on VML’s treatment and general maintenance, it was unlikely that those needs would require such a tidy sum. It would be appropriate that out of the total proceeds from the sale of the family property the petitioners should apply only such a sum as was necessary for the treatment and maintenance of VML. The rest of the money or VML’s share (considering that the property was jointly owned) would be kept in an interest earning bank account in the joint names of the Petitioners on behalf of and for the benefit of VML.
  6. Subsection 4 of Section 27 of the Act which was to the effect that a manager would be deemed to be a trustee under any other law for the time being in force, created a trust relationship between the Petitioners and VML and thus the property vested in them in the circumstances of the petition could only be held on behalf and for the benefit of the cestui que trust who in the instant case was VML.

Petition allowed.

CONSTITUTIONAL LAW Circumstances under which one would be entitled to acquire dual citizenship in Kenya

Jisvin Chandra Narottam Hemraj Premji Pattni v Director of Immigration & another
Constitutional and Human Rights Division
Petition No. 251 of 2014
Lenaola, J
September 17, 2015
Reported by Phoebe Ayaya & Kipkemoi Sang

Download the Decision

Brief facts:
The petitioner claimed to be Kenyan citizen and further claimed that his parents were Kenyan citizens and holders of Kenyan Passports. He averred that having been born in Kenya he was issued with a certificate of registration as a Kenyan citizen on 19th August, 1968. The petitioner also averred that he had a British passport which was renewed from time to time and had lived in Kenya for 62 years, had established businesses and investments and employed fellow citizens, contributed to the building of the nation like any other Kenyan citizen and since then had been enjoying every right and entitlement just like any other Kenyan citizen.
On the 24th November, 2011 the petitioner applied for a Kenyan Identity card which was issued on 1st March 2012. On 31st January 2013, he applied for a Kenyan passport and was issued with a receipt No. 0878133 and was allocated tracking No. 11545022. On realization by the respondent that the petitioner had a British passport, his application for the Kenyan passport was subsequently rejected on the grounds that he had ceased to be a Kenyan citizen by dint of Section 97 of the Repealed Constitution having his British Citizenship by 21st March 1975 or denounced the citizenship of Britain before claiming Kenyan Citizenship.
The respondent averred that the Repealed Constitution did not allow dual nationality and threatened to deport the petitioner. The petitioner contested that the action by the respondent were unconstitutional, illegal, null and void and were also a contravention of his constitutional rights. He asserted that, by dint of article 13(1) (2) and 14(5) of the Constitution of Kenya, 2010 as a Kenyan citizen having been given an identity card he was equally entitled to a Kenyan passport as a matter of right.

Issues:

  1. Circumstances under which one would be entitled to acquire dual citizenship in Kenya.
  2. Procedure to be followed to acquire the Kenyan citizenship where the applicant is a citizen of two other countries.
  3. Whether the respondent violated the rights to fair hearing and fair administrative action to the petitioner or any other fundamental right and freedoms entitled to the petitioner

Constitutional Law-acquisition of citizenship- dual citizenship in Kenya-the procedure for acquiring citizenship-whether the petitioner followed the required procedure to acquire the Kenyan citizenship- whether the petitioner was entitled to Kenyan passport and was citizen of Kenya- Constitution of Kenya, 2010, articles 13(1)(2) &(14(5); Repealed Constitution, 1963, section 97; Kenya Citizenship and Immigration Act Cap 172, section 8

Constitutional Law- fundamental rights and freedom- right to fair administrative action whether the respondent violated the rights to fair hearing and fair administrative action to the petitioner or any other fundamental right and freedoms entitled to the petitioner - Constitution of Kenya, 2010, article 47(1) Read More...

Kenya Citizenship and Immigration Act, Cap 172
Section 8
Dual citizenship

  1. A citizen of Kenyan by birth who acquires the citizenship of another country shall be entitled to retain the citizenship of Kenya subject to the provisions of this Act and the limitations, relating to dual citizenship, prescribed in the Constitution.
  2. A dual citizen shall, subject to the limitations contained in the Constitution,be entitled to a passport and other travel documents and to such other rights as shall be the entitlement of citizens.
  3. Every dual citizen shall disclose his or her other citizenship in the prescribed manner within three months of becoming a dual citizen.
  4. A dual citizen who fails to disclose the dual citizenship in the prescribed manner commits an offence and shall be liable, on conviction, to a fine not exceeding five million shillings or imprisonment for a term not exceeding three years or both.
  5. A dual citizen who uses the dual citizenship to gain unfair advantage or to facilitate the commission of or to commit a criminal offence, commits an offence and shall be liable, on conviction, to a fine not exceeding five million shillings or imprisonment for a term not exceeding three years or both.
  6. A dual citizen who holds a Kenyan passport or other travel document and the passport or other travel document of another country shall use any of the passports or travel documents in the manner prescribed in the Regulations
  7. A dual citizen shall owe allegiance and be subject to the laws of Kenya

Held:

  1. Section 97 of the repealed Constitution provided that a person upon attaining the age of 21 years was a citizen of Kenya and if he or she was a citizen of some other country, he or she should renounce his or her citizenship of the other country, take an oath of allegiance and in the case of a person who was born outside Kenya make an application declaring his or her intention concerning residence in Kenya. Section 97 (2) (a) of the Repealed Constitution provided that a person, who had attained the age of 21 before 12th December, 1963 became a citizen of Kenya on that date by virtue of section 87 of the Repealed constitution.
  2. As of the 12th December 1963 when Kenya became a Republic, the petitioner was only 11 years old and a foreign national. He attained the age of twenty-one years on 22nd March 1973 and as at that date; he had already acquired the citizenship of Kenya by fact of registration on the 19th August 1968. At both dates the petitioner had not renounced his other country’s citizenship (whether British or Indian) neither had he taken an oath of allegiance as required by law, therefore the petitioner ceased to be a citizen of Kenya by dint of section 97(3) of the repealed Constitution on the 22nd March 1973 and he only retained his foreign nationality whether Indian or British as at that date.
  3. As late as 9th March 2012 the petitioner was only in Kenya by dint of an entry permit issued to him as British Citizen and he was not resident in Kenya or a Kenyan Citizen. Dual nationality was not recognized by the Repealed Constitution or any statute enacted pursuant to section 97. The petitioner could not be issued with a Kenyan Passport while still holding the British nationality and a British passport the petitioner had neglected and or refused to renounce that nationality as at the time when he had the legal capacity to acquire either a Kenyan Identity card and or Kenyan passport.
  4. The Kenyan identity card that the petitioner was issued and held was invalid and he ought to surrender it to the respondent or face criminal sanction. By dint of articles 13, 14 and 15 of the Constitution of Kenya, 2010 the petitioner was not a Kenyan Citizen. Article 15 (2) read together with articles 16 of the Constitution of Kenya, 2010 entitled a person in the petitioner’s position to apply for registration without losing his current nationality, in the petitioner’s case, British nationality. That position would only be actualized if the petitioner had admitted in the first instance that he was in fact not a citizen of Kenya but intended to apply for registration.
  5. Section 8 of the Kenya Citizenship and Immigration Act, Cap 172 provided for the procedure of acquiring Kenyan Citizenship. There was no way the petitioner could acquire dual citizenship through the court at the first instance.
  6. The constitutional position is that, the right to be heard is one of the two cardinal rules established under the principle of natural justice and it is generally expressed in the terms that a party should not be condemned unheard (audi alteram partem). The right to be heard requires that whenever an administrative decision which has or had to be made, the person affected by such a decision ought to be given an opportunity to express himself in that regard. On 10th March 2014 the petitioner, received a letter from the department of immigration citing section 97 of the Repealed Constitution, a letter of which sought to revoke the citizenship of the petitioner in self-created difficult position of not denouncing the citizenship of the other country other than Kenya as per the legal requirement. The decline by the respondent to grant Kenyan citizenship to the petitioner was for valid and lawful reasons. There was no violation of any right including that of fair administration as coded in article 47(1) of the Constitution of Kenya, 2010.

Application dismissed for want of merits with no cost awarded